Citation Nr: 18142798 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 15-19 153 DATE: October 17, 2018 ORDER Entitlement to service connection for bilateral hearing loss is granted. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran’s currently diagnosed bilateral hearing loss was incurred in his active military service. 2. The evidence is at least in equipoise as to whether the Veteran’s currently diagnosed tinnitus was incurred in his active military service. CONCLUSIONS OF LAW 1. Resolving all doubt in the Veteran’s favor, bilateral hearing loss was incurred in his active service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). 2. Resolving all doubt in the Veteran’s favor, tinnitus was incurred in his active service. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1961 to August 1963. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated July 2014 and September 2015 of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In October 2018, the Veteran presented sworn testimony during a videoconference hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran’s VA claims file. Service Connection 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Service connection for impaired hearing shall only be established when hearing status, as determined by audiometric testing, meets specified pure tone or speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels), over a range of frequencies (in Hertz). See Hensley v. Brown, 5 Vet. App. 155, 158 (1993). For the purposes of applying the law administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Here, the Veteran contends that he has bilateral hearing loss and tinnitus, which are due to in-service noise exposure. See, e.g., the Veteran’s statement dated October 2013 and his VA Form 9 dated December 2015. For the reasons set forth below, the Board finds that service connection for bilateral hearing loss and tinnitus is warranted. The Veteran served on active duty from August 1961 to August 1963. His service treatment records (STRs), including his June 1963 separation examination, do not document any complaints of or treatment for hearing loss and/or tinnitus. The Veteran asserts that he was exposed to the noise of Howitzer guns and other artillery during his active duty service. Id. To this end, the Board notes that the Veteran’s in-service noise exposure has been conceded by the RO. See the rating decisions dated August 2014 and September 2015. The Veteran was afforded a VA audiology examination in July 2014 at which time the examiner confirmed that the Veteran has bilateral hearing loss sufficient for VA compensation purposes pursuant to 38 C.F.R. § 3.385. As to the question of nexus, the examiner reported that the Veteran’s bilateral hearing loss is less likely than not caused by or a result of an event in the military service. He explained, “[p]re-induction audiological evaluation dated May 12, 1961 yielded normal hearing bilaterally (whisper test: 15/15). Discharge audiological evaluation dated June 20, 1963 yielded normal hearing bilaterally.” The examiner also noted that the Veteran denied tinnitus. In support of his claim, the Veteran submitted an October 2014 statement from his spouse in which she reported that, over the last 40 years, the Veteran has gradually lost his hearing. The Veteran also submitted an October 2014 letter from Dr. R.B. in support of his contentions of entitlement to service connection for bilateral hearing loss and tinnitus. In the letter, Dr. R.B. confirmed that the Veteran has diagnoses of bilateral hearing loss and tinnitus. He noted the Veteran’s history of military noise exposure from 1961 to 1963. Dr. R.B. explained, “it is highly likely that his hearing loss and associated tinnitus are due to his exposure to loud noise during his military service.” Additionally, the Veteran submitted an article entitled, “Adding Insult to Injury: Cochlear Nerve Degeneration after ‘Temporary’ Noise-Induced Hearing Loss,” in support of his contentions of delayed onset bilateral hearing loss dating from his active duty service. The Veteran was afforded another VA audiology examination in August 2015 at which time the examiner confirmed a diagnosis of recurrent tinnitus. The examiner noted the Veteran’s report that his tinnitus began 10 to 15 years ago. The examiner concluded that his tinnitus is less likely than not (less than 50 percent probability) caused by or a result of his military noise exposure. The examiner explained that there was no hearing loss found at the time of the Veteran’s military discharge. The examiner explained, “[t]innitus is as least as likely as not a condition related to current hearing loss. Having determined that it is less likely as not that the current hearing loss was caused by or a result of military service, it follows that the tinnitus is not caused by noise exposure in service.” The examiner further opined, “[t]here is no compelling scientific evidence to support the onset of tinnitus in the absence of hearing loss.” Thus, there is conflicting medical evidence of record concerning the question of nexus between the Veteran’s current disabilities and his military service. The Board has the authority to “discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence.” See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). However, the Court has held that the Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993). With respect to the negative nexus opinion expressed by the July 2014 and August 2015 VA audiology examiners, the Board notes that the absence of evidence of a hearing disability during service is not in and of itself fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Moreover, evidence of current hearing loss and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service (as opposed to intercurrent causes). See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). As noted above, Dr. R.B. indicated that the Veteran’s currently diagnosed bilateral hearing loss and tinnitus are related to his military service. This opinion is supported by the competent assertions of the Veteran and his spouse concerning his acoustic trauma sustained during his military service, and his continuing audiological symptoms from that time.   Accordingly, the Board has weighed the probative evidence of record and finds that the evidence is at least in equipoise as to whether the diagnosed bilateral hearing loss and tinnitus are the result of the Veteran’s military service. The benefit-of-the-doubt rule is therefore for application as to these issues. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). The Board will resolve the reasonable doubt in the Veteran’s favor and find that the evidence supports the grant of service connection for bilateral hearing loss and tinnitus. See 38 U.S.C. § 5107 (2012). K. CONNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. K. Buckley, Counsel